Goddard removes self from SB 1070 defense

Battle with Brewer over defending law would be costly to Arizona, AG says

by Ginger Rough - Jun. 19, 2010 12:00 AMThe Arizona Republic

A Phoenix law firm will now have primary responsibility for defending the state against lawsuits related to Arizona's tough new immigration law after Attorney General Terry Goddard removed himself from the legal team Friday.

Goddard's action is not completely unexpected, as he and Gov. Jan Brewer have been verbally sparring for several weeks over whether he should represent the state in court. However, Goddard has repeatedly said he was prepared to mount a "vigorous legal defense" to the legal challenges related to Senate Bill 1070.

In a letter to the governor and in a related news release, Goddard said that his decision to step aside represents what is in the best interest of the state and that it is his desire to avoid a "costly and distracting" fight over the issue of legal representation.

In an interview with The Republic, Goddard blamed Brewer for the breaking apart of the legal team, saying she had made it impossible for his attorneys and her privately hired firm to mount a "cooperative defense."

"I have to be respectful of how bad that would make Arizona look," he said Friday. "To have the two top officials fighting over who defends the statute, I think, is frankly ridiculous."

The legal brouhaha started about a month ago, when the Governor's Office announced that Brewer, who is named as a defendant in four of the five pending legal cases, would be represented by Snell & Wilmer Chairman John Bouma.

Goddard, who is named as a defendant in two of the suits, said at the time that he would still defend the law in court, but he had declined to represent Brewer personally because there was a possibility the two of them would have "divergent opinions" on the best defense.

SB 1070 makes it a state crime to be in the country illegally. It states that an officer engaged in a lawful stop, detention or arrest shall, when practicable, ask about a person's legal status when reasonable suspicion exists that that person is not legally in the U.S.

Goddard has called the law both a "severe policy mistake" and a "fraud" and said he opposes the measure because he doesn't think it will reduce border crime, among other things.

But he also said that a subsequent bill passed by the Legislature, House Bill 2162, made the law legally defensible in court. The second bill sought to clarify the original measure with language that prohibits racial profiling, among other things.

However, it also gave the governor the authority to "direct counsel other than the attorney general to appear on behalf of the state to defend any legal challenge" to the law through Dec. 31.

Goddard does not agree with that provision.

Earlier this month, he told The Republic that he believes Brewer's desire to have him removed from the case infringed on his rights as attorney general. The governor has said she doesn't believe he can defend the measure because his opposition to the law gives him a conflict of interest. Goddard disagrees with that assertion.

"It is a conflict with separation powers when the Legislature tells the executive branch how to conduct affairs," Goddard said. "And the governor has no authority to interfere or be the attorney for this state."

Despite those comments, Goddard said he opted to step down after Brewer threatened to force him to quit. He said the continued bickering would undermine the state's ability to mount a successful defense against the lawsuits.

"To defend myself, I would be forced to challenge the constitutionality of . . . HB 2162, one of the bills whose constitutionality we are both trying to defend," he said Friday in a letter to Brewer.

The Governor's Office, meanwhile, said it was "pleased" the attorney general recognized he had a "conflict" in defending the law and pledged to defend it all the way to the Supreme Court, if necessary.

Goddard accused the governor of using the issue to play politics but said his upcoming gubernatorial race didn't factor into his decision. The two are vying for a full-term in the state's highest elected office.

Brewer, a Republican, appears to be the leading candidate in the GOP primary race, according to recent polling. Goddard, a Democrat, is running unopposed and is the presumptive Democratic nominee.

"If Terry Goddard is defending the state, he's sending the message that he's doing his job but is essentially supporting the governor's agenda," Solop said. "He needed to identify his own position, separate himself from her and map out his own pathway on the issue."

Solop added that removing himself from the defense gives Goddard the opportunity to talk about border security on his terms, such as his prosecution of crimes and his legal fight against the drug cartels.

News services, citing anonymous sources, reported Friday that the federal government does plan to sue Arizona over the immigration law. But Brewer's office said it had not been notified that any suit was imminent.

No hearings have been set for the five pending cases. On Friday, both the governor's attorneys and county officials said they were filing motions to dismiss a lawsuit filed by the American Civil Liberties Union and other groups.